Pietrucha v. Grant Hospital

• Decision Date: 29 September 1971
• Docket Number: No. 18260.,18260.
• Citation: 447 F.2d 1029
• Parties: Janina PIETRUCHA, Individually, and as Administratrix of the Estate of Albert Pietrucha, Deceased, Plaintiff-Appellant, v. GRANT HOSPITAL, a Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

447 F.2d 1029 (1971)

Janina PIETRUCHA, Individually, and as Administratrix of the Estate of Albert Pietrucha, Deceased, Plaintiff-Appellant, v. GRANT HOSPITAL, a Corporation, Defendant-Appellee.

No. 18260.

United States Court of Appeals, Seventh Circuit.

August 25, 1971.

Rehearing Denied September 29, 1971.

Terence J. Tyksinski, Kenneth A. Knutson, Chicago, Ill., for plaintiff-appellant; Peterson, Lowry, Rall, Barber & Ross, Chicago, Ill., of counsel.

Francis D. Morrissey, Baker & McKenzie, Chicago, Ill., for defendant-appellee; Thomas F. Bridgman, William Joseph Linklater, Chicago, Ill., of counsel.

Before SWYGERT, Chief Judge, and KILEY and PELL, Circuit Judges.

KILEY, Circuit Judge.

Plaintiff's decedent committed suicide in the psychiatric ward of defendant Grant Hospital. This diversity¹ wrongful death action by his widow followed. Verdict and judgment were for the hospital. Plaintiff has appealed. We reverse and remand for a new trial.

Decedent was admitted to the hospital September 24, 1967, at about 3:00 p. m. The head of the hospital psychiatric ward and nurse Joyce Laborde had been forewarned of decedent's extreme depression, his suicidal tendencies and his recent attempted suicide. After routine processing he was placed in a four-bed room in the psychiatric ward. The forewarning was noted in the nurse's log with a caution to watch closely for any suicide attempt. Nurse Laborde instructed Nurse Cecilia Pablo, in charge of the ward from 3:00 p. m. to 11:00 p. m., to watch decedent closely. Nurse Patiocina Cope, in charge from 11:00 p. m. on, was similarly informed. Decedent was found hanged with a belt in the men's washroom adjoining his room in the psychiatric ward at about 3:30 a. m.

I.

Plaintiff contends the evidence entitled her to judgment as a matter of law. The hospital claims the evidence shows as a matter of law it was not guilty of a breach of any duty it owed to decedent, and that accordingly the verdict must be sustained. We disagree with both parties. In our view it was for the jury to decide whether the hospital, in its supervision of a patient with known suicidal tendencies, was negligent, and that on the evidence in this record the jury could reasonably have returned a verdict for either party. See Murray v. St. Mary's Hospital, 280 App.Div. 803, 113 N.Y.S.2d 104 (1952); Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743 (1953); Rural Education Association, Inc. v. Anderson, 37 Tenn.App. 209, 261 S.W.2d 151 (1953). However, we find reversible error in the district court's rulings which denied plaintiff a fair trial.

II.

An important question at trial was whether the belt used in the suicide was or was not that of decedent. Oral testimony for plaintiff was that the belt was decedent's, and that it was not removed from his person during the hospital processing. A hospital manual of instruction required removal of the belt. The inventory made of articles removed from him does not list the belt. Testimony for the hospital was that the belt had been removed by a nurse during the admission proceedings and was placed in a drawer in the nurse's office in the ward.

Clearly the question was important: If the belt was decedent's and not removed as required by the manual, the jury might have found the hospital was negligent.² On the other hand, had the nurse removed the belt and placed it in the drawer, the jury might infer that the hospital was not responsible if during the routine fifteen minute check by the nurse of the rooms in the ward, decedent had not obtained another belt, removed the belt from the drawer.

In this factual context plaintiff moved, under Rule 43(b) of the Federal Rules of Civil Procedure, to call as an adverse witness hospital supervisor Royal who had charge of night nurses at the time. Plaintiff had prior information from police officers Ring and Schwarz that Royal had taken the belt from decedent's neck and had given it to the police at the scene, saying, "This is the man's belt. He should not have had it." The district court denied plaintiff's motion because Royal was not an "officer, director or managing agent" of the hospital, within the meaning of Rule 43(b).

In our view the ruling was a too literal application of Rule 43(b) and in the circumstances reversible error. We think that Royal, as supervisor of the night nurses, reasonably qualified as the hospital's "managing agent" subject to call as a witness adverse to plaintiff's interest. Royal's interests were identified with the hospital's and the hospital invested him with the supervisory power over the nurses with the duty to see that they furnished decedent proper care. Skogen v. Dow Chemical Co., 375 F.2d 692, 701 (8th Cir. 1967). Cf. Chumbler v. Alabama Power Co., 362 F.2d 161 (5th Cir. 1966).³

Upon denial of her motion, plaintiff called Royal as her own witness, apparently gambling that he would testify in accordance with the prior information she had. She lost the gamble. He testified that he did not know whom the belt belonged to. Technically she was bound by that testimony and could not rebut the testimony by calling her prior informants. We are not disposed to leave plaintiff entrapped on the ground that she gambled and lost. We think the court's ruling induced the gamble.

III.

Plaintiff called Dr. Zaldivar as her witness. The district court rejected his testimony because his name was not given defendant in an interrogatory concerning doctors who had treated decedent prior to his admission into defendant hospital.⁴

Plaintiff's offer of proof indicated Dr. Zaldivar had treated decedent in Loretto Hospital during a two week period about six months previously. The diagnosis then was "acute" schizophrenia. Dr. Zaldivar would have testified that in the two weeks decedent had responded progressively to treatment and was discharged with advice for further psychiatric care.

A theory of the hospital's defense was that decedent's condition was chronic and that a person with chronic suicidal tendencies will inevitably commit suicide even if the hospital exercises reasonable care toward him. Dr. Zaldivar's testimony therefore was important to the question whether the hospital breached its duty of reasonable care. And if decedent's condition was acute and curable, his widow's prospect for compensatory damages was enhanced.

Defendant had notice, in interrogatories, of decedent's confinement in Loretto Hospital⁵ and had the Loretto records for a year before trial. The records named Dr. Zaldivar as decedent's attending physician. And plaintiff's deposition indicates that she did not, at that time, know the name of the doctor who treated her husband at Loretto Hospital. We think the district court's ruling in this case was too narrow for substantial justice. And we see no prejudice suffered by defendant. Defendant says that if the doctor's name was on the interrogatory, it would have assumed that he would be called as a witness for plaintiff, and would have deposed him before trial. But it did not subpoena or depose any of the other doctors listed by plaintiff in her answer to the same interrogatory question, including Dr. Hatz, a psychiatrist who procured decedent's admission into defendant hospital; and it knew before trial that Dr. Zaldivar treated decedent.

Battershell v. Bowman Dairy Co., 37 Ill.App.2d 193, 185 N.E.2d 340 (1962), relied upon by defendant, does not compel our sustaining the court's ruling on the facts here. There is nothing in the court's opinion there to require the exclusion of testimony of a witness not listed in interrogatory answers when the name of the witness was not peculiarly within the knowledge of the answering party.

The decision in Perez v. Baltimore and Ohio R. Co., 24 Ill.App.2d 204, 164 N.E. 2d 209 (1960), is much closer to the facts of the case before us. The court there permitted an intern to testify for defendant, although his name was not listed by defendant in answer to plaintiff's interrogatories concerning doctors, because the intern was not a witness peculiarly within knowledge of defendant, and his name, the history he obtained from, and observations he made of, plaintiff were in the medical records which had been obtained and produced.

IV.

The court committed reversible error in permitting defense counsel to argue to the jury, over plaintiff's objection, that there was an issue as to whether decedent "voluntarily committed suicide" and that if the jury believed that decedent did voluntarily commit suicide, "then my client is not responsible under any circumstances at all." This argument misstated the law, created an irrelevant "fact question," and thereby misled the jury. There was, of course, no issue as to whether decedent "voluntarily committed suicide" if "voluntarily" is taken to mean that decedent killed himself. No one contends that he did not. Nor on this record can there be an issue if "voluntarily" is taken to mean that the suicide resulted from a free and controlled choice during a lucid interval.

The complaint alleges that decedent was in a mentally defective condition dangerous to himself, that the hospital knew it, that decedent was in such exercise of due care as his mental condition permitted and the hospital failed to exercise ordinary care to safeguard him against suicide. This stated substantially a res ipsa loquitur claim, Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961), although the complaint also alleges specific negligence. And plaintiff proved a prima facie res ipsa loquitur case by showing that the hospital had exclusive control of decedent and the occurrence was one that would not ordinarily take place. Meier v. Ross General Hospital, 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519, 522-525 (1968); Vistica v. Presbyterian Hospital and Medical Center, 67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193, 196 (1967).

In a res ipsa loquitur case involving a hospital's duty to a psychiatric patient, defense counsel misstated the...